R. v. Yumnu (I.) et al., 2010 ONCA 637

• Jurisdiction: Ontario
• Judge: Weiler, Gillese and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 637
• Citation: 2010 ONCA 637,(2010), 269 O.A.C. 48 (CA),260 CCC (3d) 421,[2010] CarswellOnt 7383,[2010] OJ No 4163 (QL),269 OAC 48,90 WCB (2d) 298,(2010), 269 OAC 48 (CA),[2010] O.J. No 4163 (QL),269 O.A.C. 48
• Date: 01 February 2010
• Court: Court of Appeal (Ontario)

R. v. Yumnu (I.) (2010), 269 O.A.C. 48 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.012

Her Majesty the Queen (respondent) v. Ibrahim Yumnu, Vinicio Cardoso and Tung Chi Duong (appellants)

(C44836; C45403; C46206; 2010 ONCA 637)

Indexed As: R. v. Yumnu (I.) et al.

Ontario Court of Appeal

Weiler, Gillese and Watt, JJ.A.

October 5, 2010.

Summary:

Yumnu, Duong and Cardoso were convicted by jury of two counts of first degree murder and two counts of conspiracy to commit murder. The accused appealed, alleging that the jury selection was flawed because the prosecutor had information about prospective jurors that was not disclosed to their trial counsel. They also claimed that the trial judge's final instructions to the jury were riddled with error.

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 202

General principles - Common law defences - Duress - The Ontario Court of Appeal stated that the essential elements of the excuse of duress included: "i. a threat of death or serious bodily harm to the accused; ii. a belief on the accused's part that the threat could be carried out; iii. the threat could cause a reasonable person in the accused's position to do as the accused did; iv. the accused had no safe avenue of escape; and v. the accused committed the offence only because of the threats of death or serious bodily harm" - See paragraph 197.

Criminal Law - Topic 202

General principles - Common law defences - Duress - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Duong had wanted the victims (Ton and his wife) dead and allegedly had arranged to have them killed by Cardoso and Glen - The prosecution claimed that Cardoso and Glen were the principals in the killings and that Cardoso was a willing and active participant in the planning of the murders - He was promised consideration for his role and was arrested as he attempted to collect it - Cardoso appealed, arguing the trial judge did not adequately relate the evidence to the essential elements of planned and deliberate first degree murder - The Ontario Court of Appeal rejected this ground of appeal - The judge's general instructions on what constituted planned and deliberate first degree murder and the general nature of the evidence that could be relied upon, i.e., prior, contemporaneous and subsequent words and conduct, were free of error - Also the items of evidence to which the trial judge directed the jury's attention were relevant to the planned and deliberate character of the murders and Cardoso's participation in them - See paragraphs 243 to 261.

Criminal Law - Topic 1265.2

Murder - General principles - Jury charge - Second degree murder - [See Criminal Law - Topic 1314 ].

Criminal Law - Topic 1314

Manslaughter - Jury charge - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Duong had wanted the victims (Ton and his wife) dead and allegedly had arranged to have them killed by Cardoso and Glen - The prosecution claimed that Duong was an aider in a planned and deliberate murder and a full participant in the underlying conspiracy - Duong and Cardoso appealed, arguing that the trial judge erred in failing adequately to define manslaughter in his final instructions - Cardoso also contended that the instructions on second degree murder were deficient - The Ontario Court of Appeal rejected this ground of appeal - The judge followed the step-direction approach of the Ontario Specimen Jury Instructions (Criminal), manslaughter and second degree murder both being left as a potential verdicts - Any errors in the instructions were not fatal - A more expansive direction on manslaughter would not have made any difference for any principal or secondary participant - See paragraphs 213 to 242.

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Duong had wanted the victims dead and allegedly asked Yumnu to find killers - Yumnu proposed Cardoso and Glen for the job - Yumnu and Cardoso appealed, arguing that the trial judge's instructions on conspiracy were flawed, in particular, the manner in which the unlawful agreements and their membership in them might have been proven - The Ontario Court of Appeal stated that "The final instructions on conspiracy were flawed. Incomplete for failure to review the relevant evidence and relate it to the issues. Confusing, for misplacing items of evidence on issues to which they did not relate. But of no moment in the final analysis and in light of the correct instructions on the essential elements of the offence and the overwhelming nature of the prosecution's case" - See paragraphs 328 to 348.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Duong had wanted the victims dead and allegedly had arranged to have them killed by Cardoso and Glen - The prosecution's case against Duong was that he was deeply involved in the plan to murder the deceased, but played no active role in the actual killings - His liability was left on the basis that he was an aider in a planned and deliberate murder and a full participant in the underlying conspiracy - Duong and Cardoso appealed, alleging deficiencies in the judge's charge on secondary participation - The Ontario Court of Appeal stated that "This ground of appeal moves no freight. It is based upon a selective reading of the charge, rather than a consideration of it as a whole. The complaint faintly urged now attracted no objection at trial, either before or after the charge was delivered. The essential elements of aiding were well and fully explained by the trial judge and adequately integrated into instructions about the essential elements of the prosecution's proof" - See paragraphs 204 to 213.

Criminal Law - Topic 4310.3

Procedure - Jury - General - Jury pool - Background checks - The accused appealed their criminal convictions, alleging that their right to make full answer and defence was compromised by a flawed jury selection process (i.e., jury vetting) - The prosecutor had the police do record checks on potential jurors, the results of which were not disclosed to the accused's trial counsel before the in-court stage of the jury selection process - That information, the accused claimed, might have been used in making peremptory challenges - The Ontario Court of Appeal dismissed the appeals - The prosecutor was in breach of an obligation to disclose at least any positive results of the inquiries - However, although it became apparent during the jury selection process and during trial that inquiries had been made to determine whether prospective jurors had criminal records, defence counsel did nothing about it - In any event, the undisclosed details did not affect the reliability of the verdicts rendered nor compromise the actual or apparent fairness of the trial - The right to make full answer and defence was not compromised by the nondisclosure - See paragraphs 13 to 134.

Criminal Law - Topic 4336.7

Procedure - Jury - The law - Court initiated visual aids (incl. charge, notes, decision tree, etc.) - The Ontario Court of Appeal stated that "A judge who proposes to provide jurors with a written version of final instructions for their use during deliberations should always vet those instructions with counsel sufficiently in advance of delivery to permit meaningful discussions and any necessary corrections. The procedure followed in Poitras [2002 Ont. C.A.] should be used as a guide. ... In appropriate cases, no principled reason prohibits a trial judge from providing a written version of his or entire charge for jurors' use during deliberations" - The court set out a number of factors that a trial judge might want to consider in deciding whether to follow that approach - "Where written versions of final instructions provided to the jury include evidentiary references, a trial judge should emphasize the obligation of the jurors to consider all the evidence, not just that to which reference is made in the instructions. The judge should remind jurors of the supremacy of their recollection of the evidence, of its importance to their decision and of the irrelevance of any views the judge may have or seem to have about factual issues. Critical to any assistance that written versions of final instructions may provide to jurors is the jurors' ability to read and understand the language of trial ..." - See paragraphs 366 to 369.

Criminal Law - Topic 4336.7

Procedure - Jury - The law - Court initiated visual aids (incl. charge, notes, decision tree, etc.) - Three accused were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - The accused appealed, arguing that it was wrong for the trial judge to provide the jury with a written version of his complete final instructions for use during deliberations - Further, the written form of the charge aggravated the effect of two specific errors about the standard of proof - The Ontario Court of Appeal refused to give effect to this ground of appeal - The court noted that the trial took nearly eight months and included an indictment with five counts - The trial judge's final instructions were delivered over four days, nearly six weeks after the evidence had concluded - The court stated that it was not persuaded that provision of the entire charge to the jury in written form, together with the deliberation aids of decision trees and verdict sheets, reflected legal error or an abuse of judicial discretion, or created any unfairness in the adjudicative process that led to verdict - See paragraphs 349 to 371.

Criminal Law - Topic 4350.1

Procedure - Charge or directions - Jury or judge alone - Use of standard charge - [See Criminal Law - Topic 1314 ].

Criminal Law - Topic 4350.1

Procedure - Charge or directions - Jury or judge alone - Use of standard charge - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - The accused appealed, claiming that the trial judge's jury charge was riddled with errors - The judge followed the step-direction approach of the Ontario Specimen Jury Instructions (Criminal) - The Ontario Court of Appeal dismissed the appeals - As a postscript, the court stated that: "Specimen jury instructions provide the basic building blocks for a jury charge. They are not the one-size-fits-all of jury instructions. Their application is reasoned, not rote. Tailoring may be required. A trim here. An addition there. According to the circumstances of the case. The inclusion of irrelevant instructions blurs the focus of the trial. In some cases, the clutter of irrelevancies may cause a miscarriage of justice. After anxious consideration, I am satisfied that it did not do so here. The manner in which trial judges instruct juries, how they organize their final instructions, is left largely to their discretion. Reasonable people may differ about how best to educate jurors to make an informed decision. Substance controls, not form. But sometimes the manner chosen to convey the essential matter may obfuscate rather than enlighten. That nearly happened here. The chief mischief makers:  prolixity, rote repetition, uneven evidentiary references and flawed organization. Perfection in final instructions is neither required nor attainable, but organized, focussed, clearly expressed instructions, tailored to the circumstances of the case are at once the entitlement of the jurors and the obligation of the trial judge" - See paragraphs 372 and 373.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal stated that the central purpose of a Vetrovec instruction was to alert the jury about the danger of relying upon the testimony of unsavoury witnesses and to explain the reasons that underpinned the need for special scrutiny of their testimony - The court set out the four elements that guided trial judges in the composition of Vetrovec warnings about the testimony of potentially untrustworthy witnesses - The court also reviewed the governing principles with respect to Vetrovec instructions - The court noted that Vetrovec cautions were limited to witnesses called on behalf of the prosecution and relied upon to establish an accused's guilt - Vetrovec warnings should not be given in relation to defence witnesses, although a trial judge was entitled to comment on the credibility of witnesses and the reliability of their evidence, including defence witnesses - See paragraphs 157 to 166.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Three accused appealed their convictions on two counts of first degree murder and two counts of conspiracy to commit murder, alleging that the trial judge erred in the Vetrovec cautions in the jury instructions - The accused complained that the caution relating to one Dang, a co-accused and eyewitness to the killings who had made a deal with the prosecutor and testified against the accused, was inadequate - The trial judge warned the jury that neither Dang's pleas of guilty nor the sentence she received in the deal afforded evidence of the guilt of anyone else on trial - The judge instructed that it was very dangerous to convict any accused on the basis on Dang's evidence alone and that they should look for independent evidence that confirmed her evidence; however, they could act on her testimony alone if they believed it and found it trustworthy - The trial judge pointed out the reasons underlying the caution - The Ontario Court of Appeal rejected this ground of appeal - The Vetrovec warning in connection with the evidence of Dang contained all four elements that informed the content of Vetrovec warnings - See paragraphs 136 to 185.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Three accused, including Duong, appealed their convictions on two counts of first degree murder and two counts of conspiracy to commit murder, alleging that the trial judge erred in the Vetrovec cautions contained in the final instructions to the jury - Duong argued that the caution in connection with one Dinh (who was involved in transporting the murder weapon and received immunity in return for his testimony) was deficient - The trial judge described Dinh as a co-conspirator who had never been charged as a result of his involvement in providing the gun - Dinh had admitted embellishing his testimony about what happened to the gun and expressed his wish to protect his friend and fellow gun trafficker, Lam - The judge told the jurors to look at Dinh's testimony with the greatest of care and caution and to seek confirmation of it from somebody or something other than Dinh before relying on it in the case against the accused - The trial judge offered some illustrations of potentially confirmatory testimony - The Ontario Court of Appeal rejected this ground of appeal - The caution relating to the testimony of Dinh was adequate - See paragraphs 136 to 185.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Three accused, including Yumnu, appealed their convictions on two counts of first degree murder and two counts of conspiracy to commit murder, alleging that the trial judge erred in the Vetrovec cautions contained in the final instructions to the jury - Yumnu argued that the trial judge erred in giving a Vetrovec warning or its equivalent for the testimony of members of his family that was supportive of his defence - The trial judge told the jury that inconsistencies in the Yumnu family witnesses' testimony, both internally and among their various versions, their reluctance to answer questions and inconsistencies between their evidence and that of others afforded good reason to consider parts of their evidence with the greatest care and caution - The judge then instructed the jury to look for some confirmation of the evidence of these witnesses before relying upon it in deciding whether the Crown had proven its case against the accused beyond a reasonable doubt - The Ontario Court of Appeal rejected this ground of appeal - The court noted that a Vetrovec caution should not have been given in relation to one of the relatives, who was a defence witness, however, that instruction occasioned no prejudice - See paragraphs 136 to 185.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - On appeal, Duong argued that the trial judge's charge to the jury on duress was in error - The trial judge instructed the jury on duress in connection with Duong's participation as an aider of the principals in a planned and deliberate first degree murder and for the jury's consideration in determining Duong's liability on both counts of conspiracy to commit murder - Duong had wanted the victims dead and had arranged to have them killed with financial help from his lover, Dang - Duong claimed that he was under duress because Dang threatened to tell one of the victims that Duong was going to kill him - The Ontario Court of Appeal stated that it surpassed reason to suggest that the evidence was capable of supporting an inference that Duong had no safe means of escape - No reasonable trier of fact could conclude otherwise - The excuse of duress should not have been left to the jury - The fact that it was, and the manner in which it was left for consideration, was not something of which any appellant could complain - See paragraphs 186 to 203.

Criminal Law - Topic 4369

Procedure - Charge or directions - Jury or judge alone - Directions regarding motive or design - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Yumnu appealed his convictions, arguing that the trial judge's instructions invited the jurors to "engage in an impermissible winnowing approach to its fact-finding exercise" when he instructed them about how they could use Yumnu's several police statements in determining whether the prosecutor had proven his guilt beyond a reasonable doubt - In particular Yumnu took exception to the judge's statement that: "Some parts of the statements may help Mr. Yumnu in his defence. You must consider those remarks that may help him along with all the other evidence, unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help him even if you cannot decide whether he said them" - The Ontario Court of Appeal discussed the impugned instructions and refused to give effect to this ground of appeal - See paragraphs 313 to 327.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character of accused - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Duong had wanted the victims dead and allegedly asked Yumnu to find killers - Yumnu proposed Cardoso and Glen for the job - Yumnu and Cardoso appealed, complaining that the trial judge inadequately warned the jurors about the impermissible use of evidence of bad character - The evidence adduced at trial portrayed Cardoso as a drug courier who provided "muscle" for Yumnu who was involved in drug trafficking - Evidence showed that shortly before the killings Cardoso had been in custody and had a criminal record - A witness testified that Yumnu was an "erratic intimidator who controlled her life" - The Ontario Court of Appeal examined the judge's instructions regarding permitted and prohibited uses of evidence of bad character or other misconduct of the accused - The court held that this ground of appeal failed - The instructions were adequate - See paragraphs 287 to 312.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post- offence behaviour of accused - The accused, Yumnu, Cardoso and Duong, were convicted on two counts of first degree murder and two counts of conspiracy to commit murder - Duong had wanted the victims dead and allegedly asked Yumnu to find killers - Yumnu proposed Cardoso and Glen for the job - Yumnu appealed his convictions, alleging error in the trial judge's instructions about jury use of evidence of post-offence conduct - The jury was instructed that the evidence that Yumnu did not flee had no probative value in the prosecution's attempt to establish his guilt - Evidence as to his return to drug trafficking was left as a motive on Yumnu's part to commit the offences - The jury was also instructed that they could use Yumnu's false story of a broken down car on the night of the murders, which he used as an excuse for not reporting to police as required by a release order on outstanding charges, as evidence of planning and deliberation - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 262 to 286.

Cases Noticed:

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 19].

R. v. Mitchell (J.) (1997), 105 O.A.C. 381; 36 O.R.(3d) 643 (C.A.), refd to. [para. 68].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 70].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 70].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, dist. [para. 74].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 75].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 75].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 75].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 75].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 77].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 80].

R. v. Duguay (H.) - see R. v. Taillefer (B.).

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 81].

R. v. Biddle (E.R.) (1993), 65 O.A.C. 20; 84 C.C.C.(3d) 430 (C.A.), refd to. [para. 83].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 123].

R. v. Hobbs (K.P.) (2010), 293 N.S.R.(2d) 126; 928 A.P.R. 126; 2010 NSCA 62, dist. [para. 129].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 157].

R. v. Smith (N.W.) - see R. v. James (W.A.) et al.

R. v. James (W.A.) et al., [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 158].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 159].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 159].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [para. 160].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 165].

R. v. Tzimopoulos (1986), 17 O.A.C. 1; 29 C.C.C.(3d) 304 (C.A.), refd to. [para. 165].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 195].

R. v. Savoury (T.) et al. (2005), 201 O.A.C. 40; 200 C.C.C.(3d) 94 (C.A.), refd to. [para. 196].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 197].

R. v. Almarales (A.) (2008), 244 O.A.C. 127; 237 C.C.C.(3d) 148 (C.A.), refd to. [para. 212].

R. v. Wong (C.) (2006), 211 O.A.C. 201; 209 C.C.C.(3d) 520 (C.A.), refd to. [para. 228].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 232].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 232].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 34 (C.A.), refd to. [para. 239].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 249].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 249].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 250].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 252].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 254].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 254].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 259].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 274].

R. v. Cloutier, [1940] S.C.R. 131, refd to. [para. 274].

R. v. Ruddick (1980), 57 C.C.C.(2d) 421 (Ont. C.A.), refd to. [para. 274].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 275].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 170 C.C.C.(3d) 365 (C.A.), refd to. [para. 278].

R. v. Wall (J.N.) (2005), 208 O.A.C. 111; 203 C.C.C.(3d) 232 (C.A.), refd to. [para. 283].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 302].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 303].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), refd to. [para. 304].

R. v. Marks (O.) et al. (2000), 131 O.A.C. 376; 145 C.C.C.(3d) 569 (C.A.), refd to. [para. 305].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 307].

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109; 196 C.C.C.(3d) 403 (C.A.), refd to. [para. 322].

R. v. Miller (1991), 50 O.A.C. 282; 68 C.C.C.(3d) 517 (C.A.), refd to. [para. 325].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 337].

R. v. Paradis, [1934] S.C.R. 165, refd to. [para. 338].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 341].

Canada (Attorney General) v. LaForme, [2010] O.A.C. Uned. 356; 2010 ONCA 532, refd to. [para. 342].

R. v. Connelly - see R. v. Connolly (M.).

R. v. Connolly (M.) (2001), 226 Nfld. & P.E.I.R. 87; 673 A.P.R. 87; 176 C.C.C.(3d) 292 (Nfld. C.A.), refd to. [para. 342].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 354].

R. v. Poitras (J.P.) (2002), 154 O.A.C. 25; 57 O.R.(3d) 538 (C.A.), refd to. [para. 357].

R. v. Henry (D.B.) et al. (2003), 186 B.C.A.C. 106; 306 W.A.C. 106; 179 C.C.C.(3d) 307 (C.A.), refd to. [para. 357].

R. v. Nieto (R.S.) (2007), 214 Man.R.(2d) 307; 395 W.A.C. 307; 222 C.C.C.(3d) 510 (C.A.), refd to. [para. 357].

R. v. Pickton (R.W.) (2010), 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 33, refd to. [para. 358].

Authors and Works Noticed:

Canadian Bar Association, Code of Professional Conduct, rule 21 [para. 73].

Law Society of Upper Canada, Rules of Professional Conduct, rule 4.05(3) [para. 73].

McCormick on Evidence (6th Ed. 2006), p. 733, § 185 [para. 259].

Counsel:

Gregory Lafontaine, Vincenzo Rondinelli and Lori Anne Thomas, for the appellant, Ibrahim Yumnu;

Catriona Verner, for the appellant, Cardoso;

Paul Slocombe, for the appellant, Duong;

Michal Fairburn and Susan Magotiaux, for the respondent.

These appeals were heard on April 6-7, 2009, and February 1, 2010, by Weiler, Gillese and Watt, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Watt, J.A., on October 5, 2010.